[2020] KEHC 7550 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

CRIMINAL PETITION NO. 8 OF 2018

(consolidated with Misc Appl. No. 67 of 2018)

ELIJAH MWANGI MACHARIA................................................1st APPLICANT

PETER EKAI..............................................................................2ND APPLICANT

VERSUS

REPUBLIC......................................................................................RESPONDENT

RULING

1. The Petitioners were convicted of the offence of robbery with violence contrary to Section 296 (2) of the Penal Code and sentenced to death on 22nd February 2013. His appeal to the High Court was unsuccessful.

2. The Petitioners have now filed the instant application seeking for re-sentencing which has been necessitated by the Supreme Court decision in Francis Karioko Muruatetu & Another –Vs- Republic Petition No. 15 of 2015 (2017) eKLR whereby the mandatory death sentence for the offence of murder was declared unconstitutional. As a corollary, in the case of William Okungu Kittiny –Vs- Republic Kisumu Criminal Appeal No. 56 of 2013 (2018) eKLR, the Court of Appeal applied the Muruatetu decision mutatis mutandis to the provisions of Section 296 (2) of the Penal Code which imposes a mandatory death penalty for the offence of robbery with violence. The petitioner is now seeking that the death sentence imposed on him be set aside and that this court to imposes an appropriate sentence.

3. In Francis Karioko Muruatetu & Another –Vs- Republicthe Supreme Court stated the following guidelines as mitigating factors in a re-hearing sentence for the conviction of a murder charge:-

(a) age of the offender;

(b) being a first offender;

(c) whether the offender pleaded guilty;

(d) character and record of the offender;

(e) commission of the offence in response to gender-based violence;

(f) remorsefulness of the offender;

(g) the possibility of reform and social re-adaptation of the offender and

(h) any other factor that the court considers relevant.

These factors are also applicable in a re-sentencing for the offence of robbery with violence.

4. I have also considered The Sentencing Policy Guidelines, 2016and its application which lists the objectives of sentencing at page 15 paragraph 4. 1 as follows:

1. Retribution: To punish the offender for his/her criminal conduct in a just manner.

2. Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.

3. Rehabilitation: To enable the offender reform from his criminal disposition and become a law abiding person.

4. Restorative Justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims, communities’ and offenders’ needs and justice demands that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.

5. Community protection: To protect the community by incapacitating the offender.

6. Denunciation: To communicate the community’s condemnation of the criminal conduct.

5. In determining this Petition, I have considered judgments of Superior Courts that are intended to ensure consistency and fairness. In the case of Wycliffe Wangusi Mafura v Republic ELD CA Criminal Appeal No. 22 of 2016 [2018] eKLR , where the Court of Appeal imposed a sentence of 20 years where the appellant was involved in robbing an Mpesa shop with the use of a firearm with which he threatened the attendant but was caught before he inflicted any violence on her.

6. In Paul Ouma Otieno Vs Republic ( 2018) eKLR where the convict was armed with an AK 47 rifle and a kitchen knife and robbed the complainant of cash Kshs. 450,000/= and 3 mobile phones , Majanja J substituted the death sentence with 20 years imprisonment commencing on the date of the sentence by the trial court.

7. Under the proviso to section 333(2) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya), the court is entitled to take into account the period the Petitioners have spent in custody in determining the sentence. The court record shows that the petitioners have served about 9 years in custody pre and post-trial .

8. Upon considering the sentences in the above cited authorities, I am of the view that the Petitioners deserves a sentence of at least 20 years imprisonment.

9. The sentence of death imposed on the Petitioners is hereby set aside. I re-sentence the Petitioners to serve Twenty (20) years imprisonment commencing from the date of sentence by the trial court that is, 22/2/2013.

Signed, Dated and Delivered at Kitale on this 5th day of March, 2020.

.............................

H.K. CHEMITEI

JUDGE

5/3/2020

In the presence of :-

Ms Kagali for the respondent

Appllicants present

Court Assistant – Kirong

Ruling read in open court.